High School Student "Free Speech" Case Before SCOTUS

And all of that is 100% irrelevant with regards to whether or not a school or any public institution has the right to silence or sanction you for constitutionally protected activities.

ETA: It’s also great that some of these institutions aren’t backing off so that the court can finally settle this matter and also establish precedent that all speech codes at public schools and universities are illegal.

Y’know, I’ve been thinking, just the other week a bunch of us were smiling at the middle schooler who flipped the bird in a Matt Gaetz school-visit photograph. I suppose that can be defended as political protest, yet at the same time it was a profane gesture in school grounds. I wonder in how much trouble she got. So yeah, let’s not deny it, it’s not in our nature to be coldly neutral.

ISTM from some of the posts in this thread, many of us are of the sentiment that the disciplinary action taken – which, again, is about participation in one extracurricular activity, NOT about removal from the school – was not the optimal one in this context, but that yes, there was the scope to apply some level of discipline. The case, however, seems to seek to establish whether under these circumstances there could or could not have been established such a rule of conduct, or a disciplinary action arising from it, at all.

Indeed, thank you. The majority of the Justices likely want to avoid anything that could be spun by someone as "the Court says on Social Media you can just let it all hang out, kid, as long as you say ‘hey, this is me just doing private talking’ ". At the same time neither do most of them want something that could be spun by someone else as “Court says the school owns ya, kid”. But that leaves a nice big middle to work with, so it’ll be interesting seeing what they come up with.

By the way, in case anyone thinks that schools using their authority over student’s off-campus and/or online speech is rare, or only happens in areas that directly relate to the actual work and discipline of the school, I highly recommend reading the amicus curiae brief produced by the Foundation for Individual Rights in Education (FIRE) for this case.

Here are some of the things that schools have disciplined high school students for:

  • a tweet criticizing Israel and expressing happiness that a pro-Israeli classmate had unfollowed the student on Twitter
  • posts showing images of unmasked students cramming school hallways during the COVID pandemic
  • the creation of a Facebook page specifically for people who disliked or had a bad experience with a particular teacher
  • posting on Facebook that racists should not be teaching Spanish (without mentioning any specific teacher, or even mentioning a school)
  • tweeting a quote from the film Mean Girls
  • a tweet containing swearing, in response to a snow day announcement, along with threats of further punishment if the student did not remove tweets related to the school’s handling of the incident
  • an Instagram post depicting students drinking what appeared to be alcohol while one was wearing a school sweatshirt (In this case, the New Jersey Department of Education actually overruled the school, deeming the punishment “arbitrary, capricious, and unreasonable,” but this happened more than a year after the student had already served their 30-day suspension.)
  • a Snapchat image of legally-owned guns, with a comment about being ready for the zombie apocalypse
  • a picture of students, off campus and out of school, holding guns and noting that they were about to go to a gun range to practice
  • posting a picture of a toy gun, with an orange plastic cap that explicitly marks it as a toy gun (suspension for a calendar year)
  • posting a Twitter picture of students wearing black to school to support BLM
  • posting a picture of students in front of a MAGA sign
  • posting a picture of dirty yellow water running from a school faucet

As the brief notes:

And one more thing, while I’m here. :slight_smile:

If you think that the petitioners and their supporters in this case only want to define school speech quite narrowly, and in a way that would not infringe on any really important speech rights, check out this exchange between Elena Kagan and Malcolm Stewart, the Deputy Solicitor General of the United States, who represented the Justice Department on the side of the school district in this case.

Frankly, I wonder if there’s any type of speech, under the Solicitor General’s definitions, would not qualify as school speech.

I’ll be interested to see if this framework laid out by Justice Alito ends up having any weight in the court’s final decision:

Plus they will be ridiculed over “making a federal case” out of it.

The state’s police powers allow it to satisfy even strict scrutiny for bullying, harassment, assault, theft, etc.

You are mistaken. I clearly opined that if the school bans social media usage in school, that social media speech is not school speech. I think there are situations where the state can discipline students for out of school social media posts. This is not a contradiction.


But the important proviso underscoring all of these examples is that the speech must cause a substantial disruption to the school’s mission. I don’t doubt that in many of the examples in the amicus briefs that some school administrators abuse their position and punish students simply because they don’t like the speech, and in those cases, I have no problem with the student suing.

However, the administrators should be given some deference. They are in the position at their schools to know what causes disruption. What might cause a disruption at a rural conservative high school is different than what might cause a disruption in an urban elementary school.

I also see school as a teaching moment for these children so that they learn to express their disagreements in an appropriate manner. What seems to be lost in this debate is that these are not adults with the full panoply of rights, and are still maturing, and part of the mission of the school is to help in the maturation process.

First you say “must cause a substantial disruption” then you pivot to “might cause a disruption”; which is actionable: did or might?

"But conduct by the student, in class or out of it, which for any reason – whether it stems from time, place, or type of behavior – materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.:

Tinker. Although in many other parts of the opinion it uses different phraseology.

So there has to be disorder; a disruption must have occurred? “Might” isn’t actionable?

Here’s the case. I don’t read it that literally. I think if the school shows that it might materially disrupt the school’s mission, then it can forbid the speech. But that just raises the question of what qualifies as a material disruption. Must it be a full blown riot to qualify?

I’m surprised the US DOJ would jump into this case. (And disappointed that they came in on the wrong side).

Unfortunately, if you follow enough Constitutional cases, one things becomes pretty clear after a while: the government nearly always steps in on the side of more government power. This is true of Republican and Democratic Justice Departments, state Attorneys General, and all sorts of other government bodies.

Isn’t that a question for jurors to decide?


I wonder how often OSG seeks to participate in “true” constitutional interpretation cases (that they are not otherwise involved in). I imagine it’s pretty common. Although, the application of the First Amendment to public schools less obviously implicates the federal executive than, say, constitutional issues in the criminal law.

Rather than merely speculate, I looked at this list of cases from OT 2019. I counted seven cases with clear constitutional interpretation issues and no federal party. The SG sought to argue in four of them (Kahler, Glover, Russo, and Morrisey-Berru) and did not appear to seek to argue in three (Ramos, McKinney, and Chiafalo).

That leads to the Heckler’s veto being even more powerful. The less attention paid to outraged or potentially outraged mobs the less power those mobs have. So-called school disruption is so vague and subjective a standard that it should not have relevance over what someone says outside of school. Petty tyrants are still tyrants.

Enough so to merit a front-page NY Times article about that very subject today (ob warning: paywall).